2005 PLP (C (PLC(CS))

CHAUDHARY MUHAMMAD TAJ, J.

This appeal, by leave, is directed against the judgment passed by the High Court on 16-2-2004 whereby the writ petition was dismissed.

2. The facts are that the appellant filed a writ of quo warranto in the High Court of Azad Jammu and Kashmir whereby the appointment of respondent No.1 made by the other respondents was challenged on the ground that he is not a State Subject and in presence of other candidates, who were State Subjects, he was not entitled to be appointed. The learned Judge in the High Court dismissed the writ petition. Hence this appeal.

3. Ch. Muhammad Azam Khan, the learned counsel for the appellant, argued that according to the University of AJK Service Statutes, 1981 (General Provisions), no person is eligible for B appointment to the services of the University by direct recruitment unless he is a State Subject Class-I. The learned counsel referred to section 5 subsection (a) of the Statutes in support of his assertions.

4. Mr. Mujahid Hussain Naqvi, the learned counsel representing respondent No.1, argued that the University Authorities invited applications for the appointment under discussion where the required qualification was B.Sc. Engineering 1st Class. There was none from State Subjects who had the required qualification, therefore, keeping in view section 5 (a) of Chapter-II of the University of AJK Service Statutes, 1981 (General Provisions), the condition was relaxed and respondent No. 1 coming on the merit was appointed. It was also argued that the quo warranto writ petition did not disclose that any other State Subject candidate was holding the required qualification and in his presence a non-State Subject was appointed. The learned counsel referred to section 6 (a) of Chapter-II of the University of AJK Service Statutes, 1981 (General Provisions) in support of his contentions.

5. Mr. Farooq Hussain Kashmiri, the learned counsel appeared on behalf of the AJK University, supported Mr. Mujahid Hussain Naqvi in arguments.

6. We have heard the learned counsel for the parties also gone through the record carefully. The precise grievance of the appellant is that respondent No.1 who is a non-State Subject, could not be appointed against a post of Lecturer in the University of Azad Jammu and Kashmir. He has referred to section 5 subsection (a) of the University of AJK Service Statutes, 1981 (General Provisions) in support of his assertions. It would be useful to reproduce the aforesaid provision:- "

5. No person shall be eligible for appointment to the services of the University by direct recruitment unless:- (a) he is a Jammu and Kashmir State Subject Class-I; provided that the competent authority may relax this condition in case persons of requisite qualifications are not available."

7. A perusal of the aforesaid provisions of law reveals that for the said appointment preference has been given to State Subject candidate, holder, of requisite qualification but in case the candidate possessing the required qualification is not available, the condition in section 5 (a) of the University of AJK Service Statutes, 1981 (General Provisions) can be relaxed. In the present case we have perused the writ petition filed in the High Court and the appeal before this Court. It is not found from the record that, any State Subject candidate having the same qualification contested, therefore, we cannot hold that the relaxation was made against law. Though the learned Judge in the High Court dismissed the writ petition but on the grounds which were not relevant as the extraordinary career of respondent No.1 could not be made a ground for appointment, but the result remains the same as the Court had to consider the required qualification and any candidate, available from State Subjects. In case of their non-availability certainly a non-State Subject could be appointed after relaxation of the condition. We also noticed that the condition was relaxed and thereby appointment of the respondent was made. In such situation no illegality is found in the appointment of respondent No.1 as such the order passed by the High Court dismissing the writ petition is maintained.

8. It may also be added that so far as the quo warranto writ petition is concerned, that can be granted by the High Court upon a petition against a person who claims and usurps an office, inquiring from him by what authority he claims or usurps the office. The petitioner invoking the jurisdiction must satisfy that the office in-question is a public office and is held by respondent without legal authority. It is necessary that respondent should be clearly shown to be disentitled to hold the office in question. If it is established to the satisfaction of the Court that the holder of the office is not legally qualified to hold or to remain in the office or some statutory provisions have been violated in making the appointment and his title to the office is without any legal warrant or authority. The quo warranto writ will not be, issued unless a clear violation of law or any other rule having the force of law is , shown to have been committed in the appointment. In view of the above, we do not find any merit in this appeal which is dismissed with no order as to the costs. H.B.T./144/SC(AJ&K) Appeal dismissed.